REUTERS | Paulo Whitaker
November 13, 2019

New Balance fails to equalise in sponsorship dispute

In a step change from the days of Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (trading as Medirest) in which the Court of Appeal rejected the notion of a general doctrine of good faith, many construction contracts now include an express requirement to act in “good faith”.

This trend is not confined to long term PPP agreements and alliancing arrangements. It is also seen in standard form contracts, such as the “mutual trust and co-operation” wording found in the NEC ECC contracts and (where selected) the supplemental collaborative wording found in the JCT:

“…the parties shall work with each other and with other project team members in a collaborative and co-operative manner, in good faith and in a spirit of trust and respect…”.

Commercial practitioners will also be aware of the recent judicial focus on relational contracts, into which contracts a duty of good faith may be implied. Last year the Court of Appeal noted that a PFI contract may be classified as a relational contract in Amey Birmingham Highways Ltd v Birmingham City Council. Continue reading →

REUTERS | Hannah McKay
November 13, 2019

Sharing the pain: considerations for joint venture participants

Both contractors and developers often enter into joint ventures to carry out a specific project. It enables parties to bid on larger projects, pool their resources, including specialised knowledge, and spread risk across the participants. The recent decision in Doosan Enpure Ltd v Interserve Construction Ltd serves as a reminder to participants in construction joint ventures of the potential pitfalls of intra-JV disputes. Continue reading →

REUTERS | Reuters
November 5, 2019

TCC considers the section 105(2) exclusions (again)

In my last post, when I considered the exclusions to “construction operations” set out in section 105(2) of the Construction Act 1996, I was looking at the supply-only exception and its proviso in section 105(2)(d). I concluded  that post by saying:

“I think that this case further reinforces the need to abolish the exclusions in section 105(2).”

When Matt posted the blog on LinkedIn, my views about the abolition of the supply-only exclusion prompted some lively debate, with some people in agreement and others pointing out some potential practical difficulties of abolishing it. However, my sense is that there is more consensus about abolishing the power generation exclusion in section 105(2)(c), following cases such as Severfield (UK) Ltd v Duro Felguera UK Ltd, where Coulson J (as he was then) was highly critical of it.

In this week’s post I want to discuss another section 105(2)(c) exclusion case, C Spencer v MW High Tech. Continue reading →

REUTERS | David Gray
October 30, 2019

Judicial treatment of delay analysis: raw data preferred

Have you read the SCL’s delay and disruption protocol? I am sure you have, as the SCL website notes that it has been downloaded 38,500 times. But if not, I would recommend it to you, in particular its helpful glossary of terms, its reminder of the various formulae for calculating lost overheads and profit, and its description of various methods of delay analysis.

Unlike the first edition of the protocol, which recommended time impact analysis, the second edition (published in February 2017) does not recommend one particular method, but sets out the following six methods together with their features, and pros and cons:

  • Impacted as-planned analysis.
  • Time impact analysis.
  • Time slice windows analysis.
  • As-planned v as-built windows analysis.
  • Longest path analysis.
  • Collapsed as-built analysis.

What the protocol lacks, of course, is any standing either in terms of incorporation into contracts or judicial recognition. The SCL website carries a list of judicial references not just from the courts of England and Wales but also from Australia, Hong Kong and Norway. However this list is disappointingly short (just 12 cases) and a reading of the cases shows an underwhelming lack of support from judges. Continue reading →

REUTERS | REUTERS/Goran Tomasevic
October 23, 2019

Adjudicating on multiple adjudications

I recently saw a comment that someone had posted on LinkedIn asking if it was possible for the law just to stay as it is for a while, given the deluge of recent construction case law. I’m sure quite a few of us think that from time to time although, as someone with a regular blog post to write, I don’t want it to go too quiet too often!

Which brings me to one of the latest judgments from Adam Constable QC. It looks like he had a busy September, hearing the dispute in LJH Paving v Meeres Civil Engineering one day, Meadowside Building Developments v 12-18 Hill Street the next day. Plenty has been written about the important points of principle that came out of Meadowside by those involved (for example, see Helena White and Mark Fletcher’s posts), so I’m going to focus on the judgment in LJH Paving. In particular, I’m going to look at the multiple adjudications point (which the keen-eyed might notice wasn’t actually a point raised in the judgment). Continue reading →

REUTERS | Vijay Mathur
October 22, 2019

Third party funding in adjudication for exceptional circumstances

In Meadowside Building Developments Ltd (in liquidation) v 12-18 Hill Street Management Company Ltd, Adam Constable QC decided that where a company in liquidation sought to enforce an adjudication decision, the provision of adequate third-party security was a necessary, but not sufficient, requirement.

In her recent Blog post, Helena White provided a general summary of that decision. In this piece I focus on how Meadowside shows the continued relevance of the rules of maintenance and champerty where third parties are involved in litigation (including adjudication). Continue reading →

REUTERS | Mike Segar
October 21, 2019

Considering crystallisation: what dispute should (or can) you refer to adjudication?

It’s a scenario we see all too often. Employer meets contractor. Employer and contractor enter into a contract and, for a while, everything seems rosy. Then, as the project progresses, unresolved claims start escalating and the relationship deteriorates. Inevitably, the parties’ minds turn to adjudication, and the potential recourse that they may find there. Continue reading →

REUTERS | Kai Pfaffenbach
October 16, 2019

Meadowside: one small step for companies in liquidation but a giant leap forward for adjudication enforcement

Meadowside Building Developments Ltd (in liquidation) v 12-18 Hill Street Management Company Ltd provides another development in the law of adjudication (and adjudication enforcement) that places liquidators (acting on behalf of a company in liquidation) closer to being able to enforce adjudicators’ decisions. Continue reading →

REUTERS | Kevin Lamarque
October 16, 2019

Flexidig v Coupland – claims in economic torts

The recent TCC decision in Flexidig Ltd v A Coupland (Surfacing) Ltd piqued my interest. My first thought was why did Flexidig commence proceedings against Coupland, and why did it bring the claim that it did?

It provides a rare example of the tort of procuring a breach of contract arising in the construction context and contains helpful comments on the contractor’s right to have “first refusal” on remedying defects. Continue reading →

REUTERS |
October 15, 2019

Email signatures: say what you mean and mean what you say

In Neocleous v Rees a court found that an automatically generated email footer (containing the name and contact details of the sender) constituted a signature for the purposes of the legal requirement that a contract for the sale or disposal of an interest in land must be signed by or on behalf of each party. The judge said that the footer was included in the email as the result of a conscious decision to include it and the recipient had no reason to think that the presence of the name as a signature was unknown to the sender. The fact that the sender had used the words “Many Thanks” before the footer showed an intention to connect his name in the footer with the contents of the email. Continue reading →